HOW CAN DEVELOPING COUNTRIES AVOID BEING SUED BY FOREIGN INVESTORS a LOOK AT INTERNATIONAL CENTRE FOR THE SETTLEMENT OF INVESTMENT DISPUTES REGIME AND CASE ANALYSIS

HOW CAN DEVELOPING COUNTRIES AVOID BEING SUED BY FOREIGN INVESTORS: A LOOK AT INTERNATIONAL CENTRE FOR THE SETTLEMENT OF INVESTMENT DISPUTES' REGIME AND CASE ANALYSIS HOANG NGUYEN HA QUYEN Student ID: xxx A dissertation submitted in partial fulfilment of the requirements of the University of the West of England for the degree of Master of Laws in International Law School of Law, University of the West of England, Bristol, UK November 2008 DECLARATION I hereby declare that I have read and understood the regulations governing the submission of LLM dissertation at the University of the West of England, including those relating to length and plagiarism, and that this dissertation conforms to these regulations I further declare that I agree for the University to keep and/ or store an electronic copy of this dissertation in the library Signed by HOANG NGUYEN HA QUYEN ACKNOWLEDGEMENT I wish to express my sincere thanks to Prof Elena Blanco from the University of the West of England for her great contributions to my dissertation Thanks to her interesting topics in the international commercial disputes course that I have had a chance to attend and her example about Argentine’s crisis at the ICSID Center has created the initial thought about this dissertation During the time of writing this paper, she has provided valuable contributions and comments to my works and I highly appreciate her time for me I also wish to thank Dr Le Net for providing me information related to the topic There are many others have provided information related to the topic in many ways and I appreciate their contributions to this paper I am especially grateful to my friend and husband, for his understanding, support and encouragement during my LLM course, for the long journey he has done to cheer me up, for his constant sleepless nights listening and reading my works, for his editorial observations and suggestions to every piece of the work I’ve done His knowledge of computers was also extremely helpful ii Table of Contents ABBREVIATION v TABLE OF CASES vi INTRODUCTION METHODOLOGY Chapter 1: FOREIGN INVESTMENTS PROTECTION AND ICSID 1.1 Economic Development and Foreign Investment under investment treaties a Role of foreign investment toward Economic development: b The foundation of Investment treaties: c Other forms of investment protection: 1.2 Investment Dispute settlement and the choice of ICSID arbitration Chapter 2: ICSID AND ITS REGIME 10 2.1 World Bank and the establishment of ICSID 10 2.2 ICSID arbitration and its regime 11 a Consent in writing: 12 b National of Contracting States: 13 c Investment disputes: 15 2.3 ICSID arbitrators and arbitral tribunal 17 2.4 ICSID awards and enforcement 18 Chapter 3: CRITICISM ON ICSID DISPUTES SETTLEMENT MECHANISM 20 3.1 3.2 3.3 3.4 Is ICSID the best choice for developing countries? 20 Facts and statistics: 23 Criticisms on ICSID disputes settlement mechanism: 24 Some special features of investor-state disputes: 28 CHAPTER 4: ICSID REGIMES AND THEIR DISADVANTAGES TOWARD HOST STATES 30 4.1 Does ICSID take into account special features of investor – state dispute? 30 a b c d e f State sovereignty: 30 Social welfare: 32 Necessity defence: 34 Ignore human rights: 35 Broad definition of expropriation: 36 Broad definition of investment and investor: 37 iii 4.2 a b c d Why and how ICSID awards favored foreign investors? 38 Question of World Bank’s regime? 39 Question of arbitrators? 43 Question of system 44 The problem of using case law 46 CHAPTER 5: SOLUTIONS FOR DEVELOPING COUNTRIES 49 5.1 5.2 a b c d e f g h i j k l Do developing countries need BITs to attract FDI? 49 Solutions for developing countries: 54 Negotiate and draft treaties carefully before signing: 54 Define investor and investment: 55 Enhancing the capacity of domestic institutions 55 Limit the investor’s access to arbitration: 56 Raise Human Rights Obligations 57 Call for the corporate social responsibility (CSR) 57 Allowing Individuals to Sue Investors for Human Rights Violations 58 Renegotiate existing BITs 58 Develop a more balanced set of investment rules: 59 Taking Australia precedent to exclude ICSID provision: 60 Reform the ICSID arbitration process: 60 De-link ICSID from the World Bank: 61 CHAPTER 6: CONCLUSIONS 62 ANNEX 64 Metalclad v Mexico (Metalclad) 64 ANNEX 66 CME V CZECH REPUBLIC (CME) 66 ANNEX 66 Tecmed v Mexico (Tecmed) 66 ANNEX 68 Generation Ukraine v Ukraine (Generation Ukraine) 68 ANNEX 69 Fedax NV v Venezuela (Fedax) 69 ANNEX 70 CSOB v The Slovak Republic 70 ANNEX 70 Azurix v Argentina (Azurix): 70 iv ANNEX 72 CMS Gas Transmission Company v Argentina (CMS) 72 ANNEX 74 LG&E v Argentina (LG&E) 74 -o0o Word counts: 14,492 v ABBREVIATIONS BIT: Bilateral Investment Treaty CAFTA: Dominican Republic – Central America Free Trade Agreement CSR: Corporate Social Responsibilities ECT: Energy Charter Treaty EU: European Countries FDI: Foreign Direct Investment FTA: Free Trade Agreement IBRD: The International Bank for Reconstruction and Development ICC: International Chamber of Commerce ICSID: International Centre for Settlement of Investment Disputes IFC: International Finance Center IIA: International Investment Agreement IISD: The International Institute for Sustainable Development IMF: International Monetary Fund IPS: Institute for Policy Studies LDCs: Least Developed Countries MAI: Multilateral Agreement on Investment MFN: Most Favored Nation MIGA: World Bank’s Multilateral Investment Guarantee Agency MNCs: Multi-national Corporations NAFTA: North American Free Trade Agreement NGO: Non-government Organization OECD: Organisation for Economic Co-operation and Development PCA: Permanent Court of Arbitration SCC: Stockholm Chamber of Commerce UK: The United Kingdom UNCTAD: The United Nations Conference on Trade and Development US: The United State of America USTR: Office of the United States Trade Representative vi TABLE OF CASES  ADF Group Inc v United States of America, ICSID Case No ARB(AF)/00/1, Final Award, January 2003 (NAFTA)  Aguas del Tunari S.A v Republic of Bolivia, ICSID Case No ARB/02/3  Alex Genin, Eastern Credit Limited v Republic of Estonia, ICSID Case No ARB/99/2, Award, 25 June 2001 (United States-Estonia BIT)  Autopista Concesionada de Venezuela v Bolivarian Republic of Venezuela, ICSID Case No ARB/00/5, Decision on Jurisdiction, 27 September 2001, and Final Award, 27 September 2003  Azurix Corp v Argentine Republic, Award, ICSID Case No ARB/01/1, 14 July 2006  Bayview Irrigation District et al v Mexico, ICSID Case No ARB(AF)/05/1 (NAFTA ) Award, 19 June 2007  Československa obchodní banka, a.s v Slovak Republic, ICSID Case No ARB/97/4  CME Czech Republic B.V v Czech Republic (2003) – search case No  Continental Casualty Company v Argentine Republic, ICSID Case No ARB/03/09, award dated September 5, 2008  European Court of Human Rights - López Ostra v Spain - 16798/90 [1994] ECHR 46 (9 December 1994)  Fedax N.V v Republic of Venezuela, ICSID Case No ARB/96/3, Decision on Objections to Jurisdiction (11 July 1997), ICSID Reports 183 (2002)  Fireman's Fund Insurance Company v United Mexican States, ICSID Case No ARB (AF)/02/1 (NAFTA)  Generation Ukraine INC v Ukraine, ICSID Case No.ARB/00/9, Award 16 September 2003  CMS Gas Transmission Company and the Argentine Republic, ICSID Case No ARB/01/8, Award, May 12, 2005  Lanco International v Argentine Republic, ICSID Case No.ARB 97/6 vii  LG&E Energy Corp., LG&E Capital Corp and LG&E International Inc v Argentine Republic, ICSID Case No ARB/02/1, Decision of the Arbitral Tribunal on Objections to Jurisdiction, 30 April 2004, Decision on Liability, October 2006  Marvin Roy Feldmen Karpa v United Mexican States, ICSID Case No.ARB (AF)/99/1)  MCI Power Group LC and New Turbine, Inc v Republic of Ecuador, ICSID Case No ARB/03/6, Award, 31 July 2007  Metalclad Corp v the United Mexican States, ICSID Case No.ARB (AF)/97/2, Award (August 30, 2000)  Salini Costuttori S.p.A and Italstrade S.p.A v Kingdom of Morocco, ICSID case No ARB/004, Decision on Jurisdiction (23 July 2001)  SGS Soci´et´e G´en´erale de Surveillance S.A v Pakistan, Dec on Objections to Jurisdiction, 18 ICSID Review 307 ICSID (2003)  SGS Société Générale de Surveillance S.A v Republic of the Philippines, ICSID Case No ARB/02/6  Suez, Sociedad General de Aguas de Barcelona, S.A (AGBAR) and Vivendi Universal, S.A v Argentine Republic - ICSID Case No ARB/03/19  T´ecnicas Medioambientales TECMED S.A v Mexico, 43 I.L.M 133, 122 ICSID (World Bank) 2003  Tecnicas Medioambientales Tecmed S.A v United Mexican States, ICSID Case No ARB(AF)/00/2, Award, 29 May 2003 (Spain/Mexico BIT),  Vieira v Chile, ICSID Case No ARB/04/7 (Chile – Spain BIT) viii INTRODUCTION In the past twenty years, there have been a growing number of bilateral economic co-operation treaties between industrialised and developing countries These treaties have mainly addressed the issue of encouragement, treatment and protection of investments.1 All these treaties contain clauses on dispute settlement, and there has been a tendency after 1966 when the Convention of the Settlement of Investment Disputes between States and Nationals of Other States came into force has been to insert a clause through which parties mutually agree to submit their differences to arbitration or conciliation under the Centre established through that Convention By the end of 2005, the total number of bilateral investment treaties had reached 2,495, along with 232 other international agreements containing investment provisions,3 approximately 1,500 call for dispute resolution via ICSID This figure shows that roughly 75% of new foreign investment in which the host state contracts with foreign investors is subject in principle to ICSID dispute resolution Some other multilateral trade and investment treaties such as the North American Free Trade Agreement, the Energy Charter Treaty, the Cartagena Free Trade Agreement and the Colonia Investment Protocol of Mercosur, also refer to ICSID for disputes arising in investment.4 It is also worthy to note that the model BIT of the United State also refer to ICSID as one the dispute-resolution-system for investors to choose.5 Additionally, in recent years, ICSID has been written into national legislation on investment protection.6 Several treaties of this nature have also been concluded among developing countries themselves Aron Broches, Selected essays: World Bank, ICSID and other subjects of public and private international law, Journal of International Banking Law, (1996) Publication Review UNCTAD, World Investment Report 2006: FDI from Developing Countries and transition economies: implications for development, New York and Geneva, Available at: http://www.unctad.org [Assessed on August 18, 2008] Clint Peinhardt and Todd Allee, The International Center for Settlement of Investment Disputes: A Multilateral Organisation Enhancing a Bilateral Treaty Regime (2006) The US Model BIT 2004, available at: http://www.ustr.gov/assets/Trade_Sectors/Investment/ Model_BIT/ asset_upload_file847_6897.pdf [Assessed on August 17, 2008] Supra n.4 See also Hakeem Seriki and Mark Beeley, State immunity and arbitration: Svenska Petroleum Exploration AB v Government of the Republic of Lithuania and AB Geonafta, International Arbitration Law Review (2006) setting in motion a series of Peso devaluations and had reduced their investment profitability and constituted a regulatory taking The case was referred to the ICSID Argentina had argued that it had acted out of a state of emergency or a state of necessity during its financial crisis, thus precluding the country’s liability for breach of the U.S.-Argentina bilateral investment treaty’s provisions Customary international law has long recognized the “necessity defense,” which allows a government to take actions in response to a crisis that might otherwise violate international obligations It argued that national public services such as gas transportation and distribution must take into account particular needs of social importance.259 Regarding the ICSID’s jurisdiction, Argentina argued that CMS lacked standing to file its claim because it was merely a minority non-controlling shareholder and thus did not have standing to claim damages suffered by TGN Awards: The CMS tribunal rejected Argentina’s arguments regarding necessity and national emergency as a defense to Treaty violations and awarded CMS U.S.$ 133 million plus interest.260 The tribunal concluded that Argentina's financial crisis did not satisfy the conditions of the necessity defence.261 The tribunal ultimately held Argentina to have breached the fair and equitable treatment obligation in the bilateral investment treaty, as well as a so-called umbrella Carlos E Alfaro, Argentina: ICSID Arbitration and BITs Challenged by the Argentine Government, December 21, 2004, available at http://www.mondaq.com/article.asp?articleid=30151&searchresults=1 260 Katia Yannaca, Working Papers On International Investment, Improving The System Of InvestorState Dispute Settlement: An Overview, OECD, February 2006 261 Roberto Dañino, ICSID – A Forum for the Resolution of International Legal Disputes Through Arbitration and Conciliation, November 16, 2005 259 73 clause which was deemed to require Argentina to “respect any obligation it may have entered into with regard to investments” 262 Notably, however, the tribunal rejected the investor’s contention that it had suffered an “indirect” or “regulatory” expropriation of its investment On this point, the tribunal was convinced that the investor’s enjoyment of the property had not been effectively neutralized, and that the investor’s continued ownership and control of its investment meant that there had been no “substantial deprivation”.263 Relating to Argentina’s second argument, the Tribunal ruled that the Convention did not require control over a locally-incorporated company in order to qualify under the Convention It also ruled that the Convention does not bar a claim brought by a minority non-controlling shareholder, it said “not been concerned with the question of majority [ownership] or control but rather whether shareholders can claim independently from the corporate entity”.264 Argentina applied to the ICSID in an effort to annul the award.265 The committee has annulled the portion of the 2005 award relating to the so-called umbrella clause ANNEX LG&E v Argentina (LG&E)266 A year and a half later, another ICSID tribunal came to a different conclusion in the case of LG&E v Argentina, i.e accept Argentina’s defense that its actions following the financial crisis were taken due to a state necessity, Supra n.97 Supra n 258 264 Supra n.260 265 Hearings in that case were held in May of 2007, and a final decision was rendered by an ad hoc committee in September 266 LG&E Energy Corp., LG&E Capital Corp and LG&E International Inc v Argentine Republic, ICSID Case No ARB/02/1, Decision of the Arbitral Tribunal on Objections to Jurisdiction, 30 April 2004, Decision on Liability, October 2006 262 263 74 despite the fact that the government’s “necessity defense” in CMS relied on the same economic crisis.267 Regarding “investor” and “investment” definition, the Lanco v Argentina268 came to the same conclusion that 18.3% shareholding was sufficient to find jurisdiction as an investment.269 The Tribunal noted there was nothing in the Treaty that required an investor in the capital stock to have either control over the administration of a company, or a majority share, in order to qualify as an investor for the purposes of the Treaty.270 Watson, Farley and Williams, “Investment Treaty Update.” Winter 2006 Supra n.138 269 Supra n.260 270 Ibid 267 268 75 BIBLIOGRAPHY Convention and Treaty:  The BIT between Canada and Venezuela  The BIT between Denmark and Indonesia  The BIT between Germany and Guyana  The BIT between Germany and Israel  The BIT between Germany and Sri Lanka  The BIT between Japan and Egypt  The BIT between Netherlands and Argentina  The BIT between the U.S and Argentina  The BIT between the U.S and Australia  The BIT between the U.S and Azerbaijan  The BIT between the UK and USSR (now UK - Russia)  The Energy Charter Treaty  The General Assembly Resolution 1803 (XVII) of December 14,1962  The ICSID Convention  The NAFTA  The US Model BIT  Universal Declaration of Human Rights Books  Baker, James C., Foreign Direct Investment in Less Developed Countries: The Role of ICSID and MIGA Westport, Connecticut: Quorum Book, (1999)  Bernardo M Cremades, Promoting and protecting investments, International Arbitration Law Review (2000) international  Clint Peinhardt and Todd Allee, The International Center for Settlement of Investment Disputes: A Multilateral Organisation Enhancing a Bilateral Treaty Regime (2006)  Gregoire, Christine, The Honorable Rob Portman (2005) 76  Joy Cherian, Investment Contracts and Arbitration – The World Bank Convention On the Settlement of Investment Dispute, A.W Sijthoff International Publishing Company B.V  Kriebaum, Ursula, “Privatizing human rights: the interface between international investment protection and human rights”, The law of international relations — liber amicorum hanspeter neuhold, August Reinisch and Ursula Kriebaum (Editors), Eleven International Publishing (2007)  Kumarian, Confronting Globalization: Economic Integration and Popular Resistance in Mexico., Bloomfield (2003)  Lucy Reed, Jan Paulson and Nigel Blackaby, Guide to ICSID Arbitration, Kluwer Law International (2004)  Peter Muchlinski, Multinational Enterprises and the Law (1999)  Redfern and Hunter, Law and Practice of International Commercial Arbitration, Sweet and Maxwell (2004)  Rudolf Dolzer and Christoph Schreuer, Principle of International Investment Law, Oxford University Press, New York, (2008) Reports and working papers:  International Bank for Reconstruction and Development, Report of the Executive Directors on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (18 March 1965), in ICSID Reports at 28 (1993)  International Centre for Settlement of Investment Dispute, ICSID Annual Report (2007)  Katia Yannaca, Working Papers On International Investment, Improving The System Of Investor-State Dispute Settlement: An Overview, OECD, (February 2006)  Peter D Cameron, Stabilisation in Investment Contracts and Changes of Rules in Host Countries: Tools for Oil & Gas Investors, Association of International Petroleum Negotiators (AIPN), Final Report (5 July 2006) 77  Ryan Suda, The Effect of Bilateral Investment Treaties on Human Rights Enforcement and Realization (NYU Global Law Working Paper No 01, (2005)  U.N Economic and Social Council [ECOSOC], Sub-Comm on the Promotion of Human Rights, Report of the High Commissioner for Human Rights, Human Rights, Trade and Investment, (July 2, 2003)  UNCITAD, Investor-State Disputes Arising From Investment Treaties: A Review, UNCTAD Series On International Investment Policies For Development (2005)  UNCITAD, Latest development in Investor – State Dispute Settlement, IIA Monitor No.1 (2008), United Nations, Geneva (2008)  UNCTAD, World Investment Report 2006: FDI from Developing Countries and transition economies: implications for development, New York and Geneva (2006)  World Bank, Global Development Finance, Washington, DC: World Bank (2001) Journal Articles:  “Azurix wins claim against Argentina, recoups portion of its sunk costs.” International Institute for Sustainable Development Investment Treaty News (ITN), (July 26, 2006)  A Maniruzzaman, Stabilization in Investment Contracts and Change of Rules by Host Countries: Tools for O & G Investors”, AIPN Project (2005-2006)  A Broches, The Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 1965: Explanatory Notes and Survey of its Application, 28 Yearbook of Commercial Arbitration 627, 642 (1993)  Andrew Wheat, “Toxic Shock in a Mexican Village,” Multinational Monitor, Vol 16 No 10 (Oct 1995)  Arif Hyder Ali, Alexandre de Gramont, ICSID Arbitration in the Americas, The Arbitration Review of The Americas (2008) 78  Aron Broches, Selected essays: World Bank, ICSID and other subjects of public and private international law, Journal of International Banking Law, Publication Review (1996)  Bejarano González, Fernando, “Investment, Sovereignty, and the Environment: The Metalclad Case and NAFTA’s Chapter 11,” in Timothy A.Wise, Hilda Salazar and Laura Carlsen, edits  Bertrand Montembault, “The Stabilisation of State Contracts Using the Example of Oil Contracts – A Return of the Gods of Olympia”, RDAI/IBLJ (No.6, 2003), p.593  Brunet, Edward, “The Core Values of Arbitration” Arbitration Law in America, Cambridge University Press (2005)  C Chatterjee., “The Stabilisation Clause Myth in Investment Agreements”, J Int’l Arb (1988) 97  Cabrera, Fernando, “Bolivia expounds on reasons for withdrawing from ICSID arbitration system”, Investment Treaty News, 27 May, International Institute for Sustainable Development (2007)  Cabrera, Fernando and Luke Eric Peterson, “Argentina moves to disqualify tribunal in dispute over admitting earlier rulings”, Investment Treaty News, May, International Institute for Sustainable Development, (IISD) (2007)  Carlos E Alfaro, Argentina: ICSID Arbitration and BITs Challenged by the Argentine Government, December 21, 2004 – available online  Carolyn B Lamm, Eckhard R Hellbeck, Chiara Giorgetti, The new frontier of investor-state arbitration: annulment of NAFTA awards, International Arbitration Law Review (2008)  Chris Maina Peter, Selected essays: World Bank, ICSID and other subjects of public and private international law by Aron Broches, Journal of International Banking Law, Publication Review (1996)  Damon Vis-Dunbar, Luke Eric Peterson and Fernando Cabrera Diaz, “Bolivia notifies World Bank of withdrawal from ICSID, pursues BIT revisions”, International Institute for Sustainable Development, Investment Treaty News, (May 9, 2007) 79  Eric Neumayer and Laura Spess , Do Bilateral Investment Treaties Increase Foreign Direct Investment to Developing Countries? World Development Vol 33, No 10, pp 1567–1585 (2005)  Franck, Susan “The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing International Law Through Inconsistent Decisions.” Fordham Law Review, (March 2005)  G Verhoosel, “Foreign Direct Investment and Legal Constraints on Environmental Policies: Striking A Reasonable Balance Between Stability and Change”, 29 Law & Pol’y Int’l Bus (1998) 451  Goh Chien Yen, The Sharp Edge of International Investment Agreements: Expropriation and Dispute Settlement, Third World Network  Griffin, Peter, Farren, Ania, How Icsid can protect sovereign bondholders, International Financial Law Review (Sep 2005), Vol 24 Issue 9, p21-24  Hakeem Seriki and Mark Beeley, State immunity and arbitration: Svenska Petroleum Exploration AB v Government of the Republic of Lithuania and AB Geonafta, International Arbitration Law Review (2006)  Hellmuth Fuhrer, “The Role of Private Foreign Investment in Economic Development, OECD Observer, Special Issue (September 1966)  Jacob Katz Cogan, Bolivia's Denunciation of the ICSID Convention - The International Law Reporter (July 8, 2007)  Julien Fouret, The World Bank and ICSID: Family or Incestuous Ties?, International Organisation Law Review (2007) 121-144  Klaus Peter Berger, “Renegotiation and Adaptation of International Investment Contract: The Role of Contract Drafters and Arbitrators”, Vanderbilt Journal of Transnational Law (2003)  Liebeskind, “State-Investor Dispute Settlement Clause in Swiss Bilateral Investment Treaties” (2002) 20 ASA Bulletin at  Lorenzo Cotula, Regulatory Takings, Stabilization Clauses And Sustainable Development, Global Forum on International Investment, OECD, (March 2008)  Luke Eric Peterson, “Brazil remains wary of international investment rules”, Investment Law and Policy Weekly News Bulletin, June, International Institute for Sustainable Development (IISD) (2003) 80  Luke Eric Peterson, “Umbrella clause annulled in CMS-Argentina case, remainder upheld”, Investment Treaty News, (September 28, 2007)  Luke Eric Peterson, ICC nixes Argentina’s bid to disqualify arbitrator in financial crisis case” Investment Treaty News, (January 12, 2006)  Luke Eric Peterson, Investment Treaty News: 2006 – A Year in Review, International Institute for Sustainable Development (IISD) (2006)  Luke Eric Peterson, Pakistan Attorney General advises states to scrutinize investment treaties carefully, Investment Treaty News, December 2006, The International Institute for Sustainable Development (IISD) (2006)  M Kantor, “New Amendments to ICSID’s Arbitration Rules”, Stockholm International Arbitration Review 213 at 213 (2006)  Mann, Howard, Konrad von Moltke, Aaron Cosbey, and Luke Eric Peterson “IISD Model International Agreement on Investment for Sustainable Development.” International Institute for Sustainable Development, (IISD) (2005)  Margarita T.B Coale, “Stabilization Clauses in International Petroleum Transactions”, p.30 Denver J.Int’l L and Policy (2002)  Mary Bottari and Lori Wallach, Nafta’s Threat To Sovereignty And Democracy: The Record of NAFTA Chapter 11 Investor-State Cases 19942005, Lessons for the Central America Free Trade Agreement, Public Citizens Global Trade Watch (2005)  Mary Hallward-Driemeier, Do Bilateral Investment Treaties Attract FDI? Only a bit…and they could bite, World Bank, DECRG, (June 2003)  Miguel Solanes and Andrei Jouravlev, Revisiting privatization, foreign investment, international arbitration, and water, United Nations Publication, (November 2007) Chile  Miller, Scott “United States Suspends Trade Negotiations with Ecuador, U.S Department of State.” International Information Programs, (May 17, 2006)  Morton P, MAI Gets Tangled in Web: Foes to the Trade Deal Were Marshalled Worldwide, (October 1998) via the internet 81  N Terki, “The Freezing of the Law Applicable to Long-Term International Contracts”, Journal of Int’l Banking L (1991) 43  Nick Gallus, Recent BIT decisions and composite acts straddling the date a treaty comes into force, International & Comparative Law Quarterly (2007)  Ole Kristian Fauchald, The Legal Reasoning of ICSID Tribunals – An Empirical Analysis, European Journal of International Law, Oxford Journals, 19:301-364 (2008)  P.Comeaux and N Kinsella, “Reducing Political Risks in Developing Countries: Bilateral Investment Treaties, Stabilisation Clauses, and MIGA & OPIC Investment Insurance”, 15 N.Y.U.Sch.J.Int’l & Comp.L (1994)  Petitioner’s Outline of Argument, In the Matter of Arbitration Pursuant to Chapter 11 of NAFTA between Metalclad Corporation and the United Mexican States, ICSID Additional Facility, Case Number ARB(AF)/97/1, Supreme Court of British Columbia, (Jan 22, 2001) at  Pippa Read, International Investment in the WTO: Prospects and Challenges in the Shadow of the MAI, (1999) 11 BOND LR  Roberto Dañino, ICSID – A Forum for the Resolution of International Legal Disputes Through Arbitration and Conciliation, (November 16, 2005)  Rudolf Dolzer, The Impact of International Investment Treaties on Domestic Administrative Law, International Law And Politics, Vol 37:953 (2006)  Sarah Anderson and Sara Grusky, Challenging Corporate Investor Rule, How the World Bank’s Investment Court, Free Trade Agreements, and Bilateral Investment Treaties have Unleashed a New Era of Corporate Power and What to Do About It, IPS and Food&WaterWatch, (2007)  The National Law Journal, International Law: The wrong kind of “interesting”, (July 30, 2007)  Todd Weiler, Balancing Human Rights and Investor Protection: A New Approach for a Different Legal Order, 27 B.C INT’L & COMP L REV 429 (2004)  Vandevelde, K (2000), The Economics of Bilateral Investment Treaties, Harvard International Law Journal, 41 (2), 469-502 82 News, press releases:  “Ecuador rejects IMF recommendation in Occidental Petroleum suit” International Herald Tribune, Americas (October 7, 2006)  “The Gambia.” Africa Research Bulletin, January 1, 2001  Bridges, Tyler “Country in Crisis,” Houston Chronicle, July 6, 2005  ICSID News Release dated December 5, 2007, “Ecuador’s Notification under Article 25(4) of the Convention”  ICSID News Release Dated May 16, 2007, “Bolivia Submits a Notice under Article 71 of the ICSID Convention”  Investment Arbitration Reporter, Volume 1, No.2, Jun 3, 2008  Investment Arbitration Reporter, Volume 1, No.3, June 18, 2008  Investment Arbitration Reporter, Volume 1, No.4, July 1, 2008  Investment Treaty News (ITN), February 5, 2008  Investment Treaty News, (ITN) February 5, 2008,  ITA Monthly Report published by Kluwer Law International  Latest development in Investor – State Dispute Settlement, IIA Monitor No.4 (2006), UCTAD, United Nations, New York and Geneva (2006)  Manson, Paul “Evo Morales; Padlocked in the Palace.” BBC News, (April 5, 2006)  Schneyer, Josh “Amid mixed signals, Bolivia’s new president offers some comfort to foreign firms.” Platts Oilgram News, (January 24, 2006)  The Arbitration Review of The Americas (2008)  The National Law Journal, International Law: The wrong kind of “interesting”, (July 30, 2007) Others: 83  Bolivian Government Guidelines for a Fair Trade and Cooperation Treaty with the US, available online  Business-to-Business Mediation/Arbitration Arbitration Forum, (January 2005) vs Litigation, National  American Chamber of Commerce in Vietnam, Roundtable on VN-US Bilateral Investment Treaty with U.S.Chamber, (September 2008)  Bokhari, Ashfak, “Pitfalls in signing BIT with US  Bolivia’s letter to ICSID Dated (June 21, 2007) available online  Dow Jones, Interview: Argentina seeks diplomatic exit from ICSID suits, Bilaterals.org (October 12, 2007)  Elkins, Z., Guzman, A & Simmons, B (2004) Competing for Capital: The diffusion of bilateral investment treaties, 1960-2000 Working paper University of Illinois, University of California at Berkeley and Harvard University  National Association of Counties letter to USTR Mar 21, 2002, on file with Public Citizen  Opening remarks by Roberto Danino Secretary General, ICSID, “Making the most of international agreements: a common agenda” Paris, (December 12, 2005)  Panel of ICSID arbitrators list  UNCTAD, Series on issues in international investment agreements, Scope and Definition (1999)  Watson, Farley and Williams, “Investment Treaty Update” (Winter 2006)  World Trade Organisation, “Trade and Investment: Negotiate or continue to study?” Briefing note, the Third WTO Ministerial Conference, (December 1999) Cases:  ADF Group Inc v United States of America, ICSID Case No ARB(AF)/00/1, Final Award, January 2003 (NAFTA)  Aguas del Tunari S.A v Republic of Bolivia, ICSID Case No ARB/02/3 84  Alex Genin, Eastern Credit Limited v Republic of Estonia, ICSID Case No ARB/99/2, Award, 25 June 2001 (United States-Estonia BIT)  Autopista Concesionada de Venezuela v Bolivarian Republic of Venezuela, ICSID Case No ARB/00/5, Decision on Jurisdiction, 27 September 2001, and Final Award, 27 September 2003  Azurix Corp v Argentine Republic, Award, ICSID Case No ARB/01/1, 14 July 2006  Bayview Irrigation District et al v Mexico, ICSID Case No ARB(AF)/05/1 (NAFTA ) Award, 19 June 2007  Československa obchodní banka, a.s v Slovak Republic, ICSID Case No ARB/97/4  CME Czech Republic B.V v Czech Republic (2003) – search case No  Continental Casualty Company v Argentine Republic, ICSID Case No ARB/03/09, award dated September 5, 2008  European Court of Human Rights - López Ostra v Spain - 16798/90 [1994] ECHR 46 (9 December 1994)  Fedax N.V v Republic of Venezuela, ICSID Case No ARB/96/3, Decision on Objections to Jurisdiction (11 July 1997), ICSID Reports 183 (2002)  Fireman's Fund Insurance Company v United Mexican States, ICSID Case No ARB (AF)/02/1 (NAFTA)  Generation Ukraine INC v Ukraine, ICSID Case No.ARB/00/9, Award 16 September 2003  CMS Gas Transmission Company and the Argentine Republic, ICSID Case No ARB/01/8, Award, May 12, 2005  Lanco International v Argentine Republic, ICSID Case No.ARB 97/6  LG&E Energy Corp., LG&E Capital Corp and LG&E International Inc v Argentine Republic, ICSID Case No ARB/02/1, Decision of the Arbitral Tribunal on Objections to Jurisdiction, 30 April 2004, Decision on Liability, October 2006 85  Marvin Roy Feldmen Karpa v United Mexican States, ICSID Case No.ARB (AF)/99/1)  MCI Power Group LC and New Turbine, Inc v Republic of Ecuador, ICSID Case No ARB/03/6, Award, 31 July 2007  Metalclad Corp v the United Mexican States, ICSID Case No.ARB (AF)/97/2, Award (August 30, 2000)  Salini Costuttori S.p.A and Italstrade S.p.A v Kingdom of Morocco, ICSID case No ARB/004, Decision on Jurisdiction (23 July 2001)  SGS Soci´et´e G´en´erale de Surveillance S.A v Pakistan, Dec on Objections to Jurisdiction, 18 ICSID Review 307 ICSID (2003)  SGS Société Générale de Surveillance S.A v Republic of the Philippines, ICSID Case No ARB/02/6  Suez, Sociedad General de Aguas de Barcelona, S.A (AGBAR) and Vivendi Universal, S.A v Argentine Republic - ICSID Case No ARB/03/19  T´ecnicas Medioambientales TECMED S.A v Mexico, 43 I.L.M 133, 122 ICSID (World Bank) 2003  Tecnicas Medioambientales Tecmed S.A v United Mexican States, ICSID Case No ARB(AF)/00/2, Award, 29 May 2003 (Spain/Mexico BIT),  Vieira v Chile, ICSID Case No ARB/04/7 (Chile – Spain BIT) Websites:  ejil.oxfordjournals.org  icsid.worldbank.org  ilreports.blogspot.com  ita.law.uvic.ca/  ssrn.stanford.edu  www.adrforum.com  www.amchamvietnam.com  www.art-us.org/bolivia_guidelines  www.bbc.co.uk 86  www.bilaterals.org  www.foodandwaterwatch.org  www.globalarbitrationreview.com  www.globalarbitrationreview.com  www.iareporter.com  www.iisd.org/investment/itn  www.investmentclaims.com  www.investmentlaw.info  www.investmenttreatynews.com  www.ips-dc.org/reports  www.jubileeresearch.org  www.kluwerarbitration.com/  www.unctad.org  www.usinfo.state.gov  www.ustr.gov 87 ... Enterprises and the Law (1999); Klaus Peter Berger, “Renegotiation and Adaptation of International Investment Contract: The Role of Contract Drafters and Arbitrators”, Vanderbilt Journal of Transnational... of privatization of the judicial system As stated by scholar Susan D Franck, it “places the enforcement of public international law rights in the hands of private individuals and corporations.”114... Seriki and Mark Beeley, State immunity and arbitration: Svenska Petroleum Exploration AB v Government of the Republic of Lithuania and AB Geonafta, International Arbitration Law Review (2006) However,